The case of the day is Codigo Music LLC v. Televisa SA de CV (S.D. Fla. 2017). Codigo sued Televisa, a Mexican company, and sought to serve process via the Central Authority. The Central Authority refused to serve the document on the grounds that it referenced both the Hague Service Convention and the Inter-American Convention on Letters Rogatory.
It’s true that Mexico is picky—at least at one time, the Central Authority required that a summons state that the time to response was measured in calendar days instead of business days, and I still do that out of an abundance of caution, even though the situation may have improved in recent years. Mexico is picky in other ways, too.
But I have to say that the approach of Codigo’s process server is not likely to lead to good results, in my view. In support of Codigo’s motion for leave to serve process by alternate means under FRCP 4(f)(3), the process server submitted an affidavit, along with a copy of an article he wrote, excoriating Mexico and asserting that its central authority was rejecting applications for service in bad faith. Mexico’s rejection, which cited various Mexican laws, was, he wrote, “incomprehensible.”
Assume that things are as bad as the process server claims. Is his approach likely to lead to success when he submits another request in this case (as perhaps he will, since the court denied the motion for leave without prejudice)? Will he find a sympathetic ear within the central authority in the next case he handles? Is the central authority’s rejection as “incomprehensible” to Mexican counsel as it is to the process server? Did anyone retain Mexican counsel to opine on that issue?
The better approach is to take what a central authority tells you seriously and treat it respectfully, as you would a court. And just as you would consult local counsel when a point of practice in another state or country is confusing, all the more so should you consult local counsel when facing difficult service issues under the Convention. And if you seek leave to serve process by alternate means in a situation where the foreign country is not honoring the requirements of the Convention, you can still be respectful of the foreign country’s position, even if it is erroneous (e.g., the Russian position on the US practice with respect to fees and costs).